The moral grandeur of Lincoln is rooted in the myth that he made a war on the South to abolish slavery. This is, at most, a Platonic noble lie designed to legitimate the Unionist regime. Lincoln thought that slavery was immoral, but so did Robert E. Lee. And Lee, at his own expense, freed the slaves he had inherited, through marriage, from the family of George Washington. Only around fifteen percent of southerners even owned slaves, and the great majority of these had holdings of one to six. Jefferson Davis was an enlightened slave holder who said that once the Confederacy gained its independence, it would mean the end of slavery. The Confederate Cabinet agreed to abolish slavery within five years after the cessation of hostilities in exchange for recognition by Britain and France. Southerners were not fighting to preserve slavery, but simply and solely because they were being invaded. And the North certainly did not invade to abolish slavery.

Nor should this be surprising considering the Negrophobia that prevailed everywhere in the North. It was assumed by the vast majority of Americans, North and South, that America was a white European polity, and that the Indian and African populations were not—and were never to be—full participants in that polity. For example, blacks were excluded from the western territories. Oregon became a state in 1859, and its constitution, which was passed by a vote of eight to one, declared that

No free negro, or mulatto, not residing in this state at the time of the adoption of this constitution, shall ever come, reside, or be within this state, or hold any real estate, or make any contract, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all such free negroes and mulattoes, and for their effectual exclusion from the state, and for the punishment of persons who shall bring them into the state, or employ or harbour them therein.[1]

The constitution of Indiana contained the same prohibition. Lincoln’s state of Illinois prohibited the entrance of Africans unless they could post a bond of $1,000. Free Africans in northern states were severely regulated. The following regulation is from the Illinois revised statutes of 1833:

If any person or persons shall permit or suffer any … servant or servants of colour, to the number of three or more, to assemble in his, her, or their out-house, yard, or shed, for the purpose of dancing or revelling, either by night or by day, the person or persons so offending shall forfeit and pay a fine of twenty dollars.

And it was the duty of all “coroners, sheriffs, judges, and justices of the peace” who learned of such assemblages to commit the “servants to the jail of the county, and on view of proof thereof, order each and every such … servant to be whipped, not exceeding thirty-nine stripes on his or her back.”[2]

Emancipation laws in the antebellum North were designed to rid the North of its African population. They typically declared that the children of slaves born after a certain date would, upon reaching a certain age, be emancipated. This meant that adult slaves were not freed and that families could be sold South before children reached the age of emancipation. Emancipation led to a reduction of the African population in the North, not to an increase, as it did in the South. Lincoln’s own solution to the race problem was mass colonization of Africans, and he proposed securing land in Africa and elsewhere for the purpose. Even abolitionists were careful to point out that it was not the slave they loved but the slaveholder they hated, and that emancipation did not at all mean social and political equality with whites.

Slavery was more secure in 1860 than it had ever been. The Supreme Court, in the Dred Scott decision, had declared that Africans were not citizens; and Congress approved a constitutional amendment that would take the regulation of slavery forever out of the hands of the central government. Lincoln said that he had no authority and no inclination to interfere with slavery in the states where it was legal. He could tolerate slavery as a means of controlling what nearly everyone saw to be an exotic and alien population. What he could not tolerate was a dissolution of the Union, loss of revenue from the South, and a low-tariff zone on his southern border. This was the consistent thread running through Lincoln’s policy from 1860–1865. He would not recognize the conventions of the people of the southern states, and he would not negotiate with their commissioners. He would go to war immediately to coerce the states of the deep South back into the Union. And it was this act that Virginia, North Carolina, Tennessee, and Arkansas could not tolerate. They had been opposed to the radicalism of the deep South, and their legislatures had voted firmly to stay within the Union. But they would not answer Lincoln’s call for troops to coerce a state into the Union; this they considered not only unconstitutional, but immoral. And in this they were correct. But so strong is the Lincoln myth and so interwoven with American self-identity that Americans have never been able to confront the stark immorality and barbarism of Lincoln’s decision to invade the South and to pursue total war against its civilian population.

To this we may add that the modern prejudice against secession has also served to occlude the immorality of the invasion. Here was a union of sovereign states only seventy years old. These states had originally asserted their sovereignty in acts of secession from the British empire, and the Union itself had been formed by an act of secession from the Articles of Confederation. Virginia, New York, and Rhode Island reserved the right to secede in their ordinances ratifying the Constitution, and secession was a part of public discourse in all sections throughout the antebellum period. This union, through conquest, purchase, and annexation, had, in fifty years, swollen to some ten times its original size. The Republic of Texas, having seceded from Mexico, had been in the Union only fifteen years. Secession is destabilizing in that it suddenly produces new majorities and new minorities. But annexation is destabilizing in exactly the same way. Rapid expansion led to rapidly shifting majorities and minorities and to conflicts of great and important interests.

By 1860, a choice lay open between either re-negotiating the compact between the states in order to form more perfect unions, as John Quincy Adams counseled should happen, or a powerful section would have to conquer the whole and reconstruct it into its own image, subordinating all else to its own interests. Everything in the older American tradition of the self-government of peoples points to the former path. Lincoln chose the latter path, and in doing so was in step with the nineteenth- and twentieth-century trend of industrial society to consolidationism. Southerners, at great sacrifice, sought to defend that older American notion of self-government, a notion which was pushed to the margins of American consciousness after the Army of Northern Virginia surrendered at Appomattox. But it has not been extinguished, and has greater purchase in the world today than ever before as the consolidated leviathans of the nineteenth and twentieth centuries are being called into question. The Russian invasion of Chechenya is widely regarded as barbarous, but the Russians have a better title to rule Chechenya than Lincoln had to coerce eleven contiguous American states into the Union.

This broader experience enables us to take a fresh look at the morality of Lincoln’s decision. It has been said that, although the Union was originally conceived as a compact between sovereign states entailing a right to secession, it evolved into the notion of an indivisible, organic Union from which secession was impossible. This notion, however, was late in arriving, and was not universally received by 1860. Southerners obviously did not believe it, nor did many northerners. There was tremendous opposition to Lincoln’s invasion of the South. To maintain power, he was forced to suspend the writ of habeas corpus throughout the North for the duration of the war, netting tens of thousands of political prisoners. Some 300 opposition newspapers were closed down. Democratic candidates, critical of the war, were arrested by the military, and the military was used to secure Republican victories at the polls, including Lincoln’s election in 1864.[3]

But the barbarism of suppressing eleven contiguous American states in 1861 can best be brought out by a thought experiment. Today, unlike 1861, everyone has taken the pledge of allegiance affirming an organic union. (It is significant that the origin of the pledge is to be found in the loyalty oaths Confederates were required to take to regain citizenship.) Suppose that California, over a dispute with the central government about immigration, affirmative action, abortion, or some other issue, should, in a legally held convention of the people of the state, claim sovereignty under the Tenth Amendment and withdraw those powers it had delegated to the central government and withdraw from the Union. California is an economic giant. Its population is larger than that of twenty-two American states. Suppose, then, that other states, originally pro-Union, should see it in their interest to enter into a confederacy with California, and that eventually eleven contiguous states should form a western confederacy and send commissioners to Washington to negotiate payment for federal property and to establish a treaty. Would the eastern states be justified in launching an aggressive war to “save the Union”? Perhaps it would be thought that a show of force would cause people to rethink. But if it became clear that the people, at great sacrifice, were determined to gain their independence, could a policy of war aimed now at the civilian population be morally justified merely to preserve the Union?

Or, to vary the thought experiment, northern abolitionists had argued since the 1830s that the northern states should secede from the Union. Secession movements had arisen off and on in New England since 1803. Suppose now that a few New England states seceded over slavery, the tariff issue, and national expenditures for internal improvements. Other states, reluctantly, might find it in their interest to join this union so that by the time Lincoln entered Washington in 1861 he would find himself confronted with the secession of northern states and President of a southern-dominated United States, a Union that would include the eleven states of the Confederacy and most certainly Kentucky, Missouri, Maryland, Delaware, and perhaps others. Would we expect Lincoln to ignore the commissioners of this Northern Confederacy and launch a war to “save the Union?” Would we be celebrating, under his leadership, Stonewall Jackson’s scorched-earth march to the sea, the burning of Boston, and the surrender of Grant to Lee at Scranton, Pennsylvania?

None of this, of course, would have happened. First, it is unlikely that southerners, who had long argued that the Constitution is a compact between sovereign states entailing a right to secede, would have perceived northern secession as treason. Second, the Republican party was a purely sectional party openly hostile to southern interests. And Lincoln, as its leader, was the first and only sectional president in American history. He had received only thirty-nine percent of the popular vote, and had no support outside the North. His goal from first to last was to advance the political agenda of the Republican party, which could be called the New York-Chicago industrial axis. The sectional goal of the Republican party was openly asserted by its most eloquent leaders. Wendell Phillips declared:

It is just what we have attempted to bring about. It is the first sectional party ever organized in this country. It does not know its own face, and calls itself national; but it is not national—it is sectional. The Republican Party is a Party of the North pledged against the South. [4]

Charles Adams has shown that the Republican agenda could not tolerate a low-tariff zone to the south, and that the North had become accustomed to the South’s funding the bulk of the federal revenue through its export trade.[5] And it was just this horror of what an economically independent South would mean to northern industrial interests that Charles Bancroft, writing in 1874, presented as the justification for invading the South:

While so gigantic a war was an immense evil; to allow the right of peaceable secession would have been ruin to the enterprise and thrift of the industrious laborer, and keen eyed business man of the North. It would have been the greatest calamity of the age. War was less to be feared. [6]

A million-and-a-half people were killed, wounded, or missing in the war. The defense of protective tariffs has seldom been so ferocious, or so crude.

Lincoln’s conservative statesmanlike posture about preserving an indivisible union cannot be taken seriously. Not only did he not inherit such a union, the only union he was interested in preserving was a union which was dominated by northern industrial ambition. And it was exactly this that Lincoln, and the Republican party, after his death, accomplished.

But Lincoln also had a philosophical argument for making war on the southern states that brings out the prejudice against secession that is internal to the idea of a modern state. In a message to Congress on 4 July 1861, Lincoln justified his choice of war over a negotiated settlement that allowed the southern states to form their own union:

This issue embraces more than the fate of these United States. It presents to the whole family of man, the question, whether a constitutional republic, or a democracy—a government of the people, by the same people—can, or cannot, maintain its territorial integrity, against its own domestic foes…. It forces us to ask: “Is there, in all republics, this inherent, and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?”[7]

Here we have the familiar argument that a modern state cannot allow territorial dismemberment by secession. This was, of course, the same argument that was used by George III to coerce the American colonies. But Lincoln had in mind not just any sort of modern state (which could include monarchy) but a modern republican state. Being founded in liberty, such states are more liable to dissolution. Thus, the war that is beginning is a dramatic struggle to see whether a modern republican state is really possible. The same theme would be sounded in the Gettysburg Address. If secession is allowed, anarchy follows. As Lincoln put it elsewhere, if a state can secede, then the county of a state can secede, and a part of that county can secede, etc. And, if the American experiment in self-government fails, the world must revert back to monarchy.

There are a number of confusions here. First, the government of the United States in 1861 was not the government of a modern state. Rather, it was a central government of a federative union of states. It was endowed with only enumerated powers and these were delegated to it by sovereign states. The central government was the agent of those states, and the states were the principals in the federative compact. The states themselves were modern states; they had asserted this status in the Declaration of Independence, and had been recognized by the world as such. As modern states, they contained the usual legal prohibition against secession. A county cannot legally secede from an American state, but there is no such prohibition against a state exercising its federative power and withdrawing from the Union.

To describe, as Lincoln did, Virginia and the other southern states as “domestic foes” threatening self-government and to be suppressed by war is not only a spectacular absurdity, it also reveals a hubristic impiety and moral blindness. The first self-governing assembly in the western hemisphere was founded in Virginia. More great statesmen and jurists had come from Virginia than any other state. The leadership of Virginia was crucial in winning the war with Britain, during the period of the Articles of Confederation, and in forming the Union. In her ordinance of ratification, Virginia as a sovereign state, asserted the right to secede, and affirmed this right for every other state. The man often called the “father of the Constitution,” James Madison, always described the Constitution as being a compact between sovereign states. In 1830, Madison could say that it was still not certain that the Union would work. By 1861, it was clear that the Union, as a voluntary association of independent political societies, had failed.

What would the great Virginians, George Washington, Thomas Jefferson, James Madison, Patrick Henry, George Mason, John Randolph, John Taylor, and “Lighthorse” Harry Lee have done? They all supported the Union, believed the Constitution was a compact between the states, and were Virginians first. So when the states of the deep South discussed secession, Virginia called a convention of the people to decide the question, and the convention voted firmly to stay in the Union. It was only after Lincoln had decided on war and called for troops that the convention reconvened and voted to secede. Madison had said in the Federalist that the central government could not coerce a state. To be sure that the will of the people was expressed, the judgment of the convention was put to the people of Virginia, who supported secession by a margin of five to one. Tennessee was also pro-Union, but, in a referendum of the voters, decided to secede by a margin of two to one after Lincoln’s decision to wage war. The pro-Union states of North Carolina and Arkansas seceded for the same reason.

To treat, as Lincoln did, the peoples of entire states who had engaged in deliberate and legal acts of self-government as common criminals and as “domestic foes” aroused deep emotions of resentment and injustice that could be felt only by an American who had received with his mother’s milk the principle, framed in the Declaration of Independence, of the self-government of independent moral and political societies. As the case of Robert E. Lee makes clear, this feeling of resentment had nothing to do with slavery, an institution he thought was on its way to oblivion. It was this deeply felt American resentment that enabled the entire South, 85 percent of whom did not own slaves, to mobilize and to make spectacular sacrifices to keep out an invading army, the government of which was intent on destroying, and did destroy, the corporate liberty of their political societies. It was this sense of state honor that Hamilton had in mind when he said in the Federalist that the central government could never make war against an American state, and which he again asserted again before the New York State convention: “To coerce a state would be one of the maddest projects ever devised. No state would ever suffer itself to be used as the instrument of coercing another.” One cannot imagine the great Virginians of his time disagreeing.

Herman Melville, who had a good eye for the hypocrisy of northern industrial unionism, wrote:

Who looks at Lee must think of Washington In pain must think and hide the thought So deep with grievous meaning is it fraught.[8]

To this conservative and backward-looking image, we should add the forward-looking and “progressive” image: he who looks at Lincoln has seen the consolidationists Bismarck and Lenin.

So Lincoln’s inversion of the original American conception of self-government must itself be inverted. As H.L. Mencken cynically observed of the Gettysburg Address, it was not the Union forces that were fighting for government of the people, by the people, and for the people (a phrase Lincoln borrowed from Webster), but the people of the southern states. And the war was not a dramatic contest to see whether a modern republican state was possible. Virginia and the rest of the southern states were stable, self-governing modern republics whose citizens were loyal and well skilled in the art of self-government. If not conquered, there is every reason to think they would have lasted indefinitely.

All of them were, in fact, conquered, and self-government was destroyed. Virginia was divided and her western counties made into the new state of West Virginia. What Lincoln had presented as the absurdity of allowing a state to secede, namely that counties of that state could also secede, was legitimate after all, provided that it served northern industrial interests. After Lee had surrendered, and unionist governments had been formed in each southern state, and the Thirteenth Amendment outlawing slavery had been ratified by the southern states, they suddenly found themselves, by an arbitrary and unconstitutional act of Congress, expelled from the union and declared “conquered provinces.”

The argument of Lincoln and the Republican party that secession was unthinkable because the Union was indivisible now appeared as the self-serving hypocrisy it was. States could not secede from the Union, but they could be expelled, or more precisely, obliterated. It was during this period of “Reconstruction” that the Fourteenth Amendment was floated. This amendment, since the 1950s, has been manipulated by the Supreme Court to affect a vast transfer of power from the states to the central government, making it virtually impossible for the states to maintain those independent substantial moral communities protected by the powers reserved in the Tenth Amendment. It is fitting that this amendment, which had a corrupt and illegal origin in Congress, was never ratified by the states, and is, thus, not a part of the Constitution! It was simply declared by Congress to have been enacted, something Congress had no authority to do.[9] This shows just how far some Americans had wandered from the original conception of self-government.

The conflict of 1861–1865 was not, as Lincoln said it was, a struggle to see if a modern republican state could survive, but a struggle to see if a vast union of federative republics could survive without the consolidation and consequent destruction of independent moral life that a dominant faction will inevitably seek to impose on the rest. The American experience suggests that it is unlikely, but it must be admitted that our experience with such vast-scale federations is limited, so the question is still open. Since there are obvious advantages to federative unions, the only remedy is to acknowledge a legal right of secession for republics joining the federation. The American failure to achieve a genuine federalism of self-governing moral communities must stand as a challenge to the European Union. It was in recognition of this challenge that Nobel laureate James Buchanan has urged that a right of secession be written into the constitution of the European Union. With the benefit of over a century of experience, the Constitution of the Confederate States of America as an instrument of federalism appears well ahead of its time.

The brief constitutional history I have sketched that views secession as part of the checks and balance system of American federalism is completely unknown to most Americans. The reason is that we have come to believe the nationalist theory of the origin of the Constitution that Lincoln used to legitimate coercing the southern states back into the Union. Plato taught that the guardians of the republic may have to tell a noble lie about its origins. Whether the nationalist theory is a noble lie or an ignoble lie I shall not say. My point is that it is false. It has been said that the War of 1861–1877 decided once and for all the question of whether an American state could secede. But this is only another way of saying that might makes right, a principle that cannot sit well with the American doctrine of government by consent. The great Scottish philosopher David Hume taught a deeper truth; namely, that political authority is founded not on power but on opinion. A change in opinion at a strategic point can transform, in time, an entire political order.

To give an example, America began as a highly decentralized regime of independent moral and political communities jealous of their liberty. These political societies created a central government as their agent and endowed it with enumerated powers. This government was only a speck on the political landscape and its presence was scarcely felt in everyday life. From 1865 to 1965 it underwent a transformation, emerging as the most consolidated and centralized military and financial power in history. Moral and political societies with a life of their own independent of regulation and control by the central government (especially the Supreme Court) are today virtually impossible. By contrast, Canada began as a highly centralized regime under monarchy and has developed into a decentralized regime in which secession as a means of protecting independent moral and political life is part of public debate. There is a tradition in Canada that this change was due in part to Judah Benjamin, the former Secretary of State of the Confederate States of America who, after the war, fled to England and became a distinguished barrister. In a number of cases before the Imperial Parliament, he argued successfully for measures that gave the Provinces more autonomy, thereby setting Canadian federalism on the path to decentralization. [10] Asserting the right to secede, Quebec has already secured rights making it virtually an independent country, thereby making secession perhaps unnecessary.

Let me close with this question. If Hume is right that the authority of government is founded on opinion, and if acceptance of the absurd nationalist theory of the origin of the Constitution advanced by Story, Webster, and Lincoln could serve to legitimate the spectacular change from a decentralized federalism to a consolidated imperial nationalism, what would happen if Americans were taught and came to believe the truth about their own constitutional history?

Why do some in the South continue to fight the Civil War when our nation’s politics are dominated by the South? Why?

Not that the North was innocent in terms of its treatment of Blacks, but let’s remember that more than one state declared that defending slavery was one of the reasons for seceding from the Union. Let’s also remember the year of this grand gesture of Jefferson and the Confederate Cabinet. It was late 1964 since, before that, Jefferson did not think that the situation was dire enough to support the proposal. And why was the proposal made? Was it for principled reasons?

So what we have from the South is a general who did not believe in slavery but had slaves and fought for the states that wanted to keep slavery. BTW, didn’t Lee oppose giving Blacks the right to vote and didn’t he have racist views? You have Confederate President who was an enlightened slaveowner because of how he treated the slaves, and there were others like him, but still owned people as slaves. And this article states what the Confederate Cabinet was willing to do but neglected to mention the timing of the decision.

And though Lincoln is not the man of the myth, anyone who read the Socialist Helen Keller knew that, the Emancipation Proclamation was not mythical nor was the fact that slavery was a main reason why the South tried to separate itself from the Union. Yet only Lincoln and the North are found to be at fault in this article. And since it was only out of desperation at the end of the war that Jefferson and the Confederate Cabinet agreed to eventually end slavery and that before the war, slavery was a booming business containing more property value than the wealth the Union had, when would slavery have ended if the war was never fought?

This binding of conservatism with the Old South does not represent Conservatism well. And this “decentralization” forgets that the founding fathers wrote the Constitution to increase centralization because the Union was greater than the states–the founding fathers wrote the Constitution in response to widespread dissent and Shays’ Rebellion.

So again, the question is, why the selectivity in citing facts to favor the South when the South is dominating the politics of the nation.

I don’t know if Conservative values, especially those of the Old South, include the Biblical values, but there is a parable the writer of this article should read. It is the parable of the two men praying. And those who would agree with this article should remember the plight of the one man who could only praise himself and find fault with the other person. And if the writer of this article needs help in finding something to confess about the Old South, then he should ask this question: What moral community does not oppose slavery? If the answer is none, then the writer of this article should rethink the sentence he wrote:

This amendment, since the 1950s, has been manipulated by the Supreme Court to affect a vast transfer of power from the states to the central government, making it virtually impossible for the states to maintain those independent substantial moral communities protected by the powers reserved in the Tenth Amendment.

Lee did not oppose the right to vote of former slaves. As far as racist views ask native-Americans about racism in America during the 19th century. It was northern veterans of the Civil War that drove the Indians bloodily onto reservations i.e Chivington, Custer, Sheridan, Miles, Howard. Southerners were as racist as 90% of the northern brethren but at least they did not attempt to exterminate the freed slaves.

The 19th century Republican party in addition to abolitionist whigs was comprised of Know Nothings who were rabidly anti-immigrant and anti-catholic.

For all practical purposes the Southern states were you might say, put under house arrest after the war. This opened the door to Thaddeus Stevens and as they were known at the time, the Radical Republicans, as well the scalawags and hustlers and military government, which has given the opportunists chances for change and power earlier unthought of. It is felt that had Lincoln lived a more conciliatory era would have occurred. As it happened the South was essentially deprived of it’s citizenship and a series of Constitutional Amendments passed that we live with today, including the 14th, and that have had expansive interpretations conducive to the growth of federal power. It should be remembered that Lincoln was no great enemy of slavery but rather concerned with preserving the Union. Also that there were always tensions between the states, and not just the South, and the federal government. The New England states had threatened secession in 1819, Andrew Jackson in the 1830’s threatened military action to thwart separatist threats, Calhoun made the irrefutable argument that how can an entity that votes for inclusion, having so voted , bind itself irreparably to that union when it can retain the right to also vote for separation, there being nothing contrary in law. The States rightfully viewed themselves as Independent in both their capacities and their governance. Time passes and today we see the fruition of centralized federal power. I believe we will see more and worse.

One of the replies to this article basically asserts that Mr. Livingston is biased toward the old southern cause and has selectively omitted details like when President Davis proposed to abolish slavery. As a southerner I somewhat agree but I am less offended for I grew up with the stories of Sherman and his scorched earth policy. Monuments and markers attesting to his barbarism remain common place in my home town and across many towns in the deep south. As the late Shelby Foote once said “to know the soul of America is to know the Civil War…and the southern man is the only American to truly know defeat.” So maybe we’re still a little bitter. But Mr. Livingston proposes a wonderful question at the end of the paper “what would happen if Americans were taught and came to believe the truth about their own constitutional history?” Having true objective history books and classes may be impossible since history seems to be written by the victors, but we should strive to reflect on history through a lens that does not obscure the real humanity in those who came before us. For example as a child I was taught “Lincoln freed the slaves” with the emancipation proclamation and that Lincoln was hero for this. There is true in this at all. This document did nothing when it was released and only applied to the confederate states of which Lincoln had no jurisdiction. This same document did not even free the slaves in territories under Federal control. The freeing of any slave was solely dependent on the Union defeating the armies of the south. In this response I am not looking to address whether or not the South had the right to secede or should the states govern themselves or even side for or against slavery; however, those are worthy topics for debate. What I hope for is that we as a people can strive to learn an objective truth from our past so that when we do debate our future, we all know what led us to this point.

Puff and nonsense. The Constitution begins, “We, the People, of the United States..”. It does NOT begin, “We, the Sovereign States…” All else is neo-Confederate piffle. My G-g-Great Grandpa died at Shiloh, a volunteer in an Indiana regiment, because he had been born a peasant in Germany and know personally what serfdom entailed. He did not fight for tariffs, but died “to make men free.” Lincoln was not without faults, and Bobby Lee was a noble man, but spinning cotton candy propositions to further a political agenda gives a bad name to philosophers.

I agree with David Naas. There is no provision in the constitution for succession. Once a union always a union. And thank God the north won and the union was held together. What a disaster for the world it would have been. Once succession was legitamized it would have happened as frequently as Protestants divide into different denominations.

It always interests me that all discussions concerning our Southern Confederacy are about the slavery issue, when it has nothing to do with the legality of secession. Mr. Naas, the problem with the wording…”We the people” is that the very wording makes it a contract between people then living, and with the death of the last living individual at the time the contract was ratified the contract would have died with that individual. One cannot bind someone not yet living to a contract that they had no part in establishing. Now back to the slavery discussion…. The issue is not slavery, the issue is the legality of secession. I ask anyone to please cite the law or constitutional amendment that states that a State cannot secede from the union. No law means no violation of law. The union was a union of Sovereign States, not a consolidation of the States. The States retained all sovereignty other than that which they agreed to allow the general/central government to hold: here we can look at the “Federalist” #32 wherein Alexander Hamilton states…..”An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. Next we refer to the tenth amendment which states….”The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Now if NO law, or constitutional amendment was ever established preventing secession, then the words of Alexander Hamilton and the tenth amendment would apply. If no power was ever granted to the United States/the central body, then that power to secede was retained by each State individually. If no law, or constitutional amendment was established to prevent a State from seceding, then there could be NO violation of a law that does not exist, no violation of law means no insurrection or no rebellion. According to Johnson’s dictionary of the English language 1755 edition, Insurrection is defined as rebellion and rebellion means to go against lawful authority. If no law or constitutional amendment was established to make secession an illegal or unlawful act, then there could be no lawful authority on the matter, hence no insurrection, no rebellion. If there was no rebellion, then on what lawful or legal authority was Lincoln acting? Fort Sumter? Well South Carolina had already LEGALLY seceded from the union absent no law to prevent such, therefore that could not be an act of rebellion, as South Carolina was no longer party to the U.S. 1787/1789 Constitution. What use would Fort Sumter have been to the U.S. if it did not exist off the coast of the U.S.? Also we should reference Pollard’s Lessee v. Hagan 44 U.S. (3 How.) 212 (1845) Wherein the SCOTUS rendered the opinion that ….. submerged lands under navigable waters in the original 13 States was the property of the States, as opposed to the Federal government. Fort Sumter was built on a shoal that was never above water and had to be built up. The Scotus also rendered the opinion that the U.S. never held municipal jurisdiction after a State had been formed and entered the union. Now when South Carolina seceded from the union LEGALLY, she nullified all agreements with the U.S. Again there was no rebellion, therefore the militia act of 1792 would not have given Lincoln the authority to act if the claim is, or was that South Carolina was still a State within the union for two reasons, First there was NO rebellion, and second under the Militia act of 1792 the State wherein a rebellion was occurring would have been required to petition the executive for aid in putting down the rebellion before he could act. No such request was ever made. In closing, the issue of Slavery is irrelevant to the legality of secession, therefore is a mute point in the actual discussion, as no reason of any sort was required for a State to secede.

Well I liked this article and think it a worthwhile effort. This despite the fact that ultimately I do come down on the side of Lincoln, but only because of the slavery issue and the fact that I found the Confederacy in every way inferior as a political proposition to the constitutional Union.

That said, in supporting Lincoln and the cause of Union, one must not support every ruinous policy or every tragic act. Reconstruction and the general aftermath of the war was a terrible time in many ways. Many chapters in the war were terrible, as war tends to be. In a sense, the very fact of the war was a blemish on the American capacity for self government.

Lincoln argued for malice against none and I take his entire Second Inaugural very seriously. Unlike future “war Presidents” he did not glory in his turning the country into a graveyard and there was even a Providential sense of justice in the manner that he died. I do not, like Jaffa, see this death in Christological terms, but in Shakespearian terms.

I am much moved by his excellence during the Lincoln Douglas debates, and much distressed by his failure to keep the country together. The Southern cause was clearly not merely a case of what Marx called “the first rebellion in history to hoist the banner or slavery”, and to deny to the South the honor which is its due is to refuse the hard teaching of the Second Inaugural. Americans of that time were intelligent and patriotic enough to take their founding extremely seriously and if we can blame them for anything it is for letting things get so out of hand that war was the result.

The first step to forgetting why Lincoln was great is forgetting why the South was great. If you contend up front that the South was just bigots and slavers, then Lincoln’s struggle to keep the Union together is belittled, his passion for the founding is belittled. To recover a sense of what madethe Union worth preserving, honor must be given to those in the South who fought convinced that thy, not Lincoln, were acting in the spirit of ’76.

Brilliant article, Mr Livingston! But it’s too bad Lincoln was shot–his removal opened the way for the ascendancy of the Sumners and Stevenses to wreak havoc. President Davis knew this would happen; he was distressed to learn that Andrew Johnson had become President, saying ‘on the whole, I prefer Lincoln’. By the time the former Union officer, Major William McKinley, became President, only thirty years after the end of the War, the wounds had healed surprisingly fast. McKinley gave a high command in the Spanish war to General Joe Wheeler, an ex-Confederate. (It is said that the elderly Wheeler sometimes ‘slipped’, and exhorted his men to go after the Spanish ‘Yankees’.) The greater tragedy, in terms of what we face nowadays, is the resurgence of Radical Republicanism in the late twentieth century, this time even more bound up with Jacobin egalitarianism. Here, the Lincoln mythology is still able to do enormous damage to our constitutional polity.

Would someone please tell me where in the Constitution or the declaration of independence or the articles of Confederation it says “you cannot leave” Where does it say you are bound by no less penalty then that of complete annihilation should you try to leave the union?

Mr. Freeman, There is no such provision in any of the above mentioned that states that a State cannot leave the union, nor has any law been passed to prevent such. Do exist such law, or Constitutional amendment would be to consolidate the States into a single entity, which in turn would mean there no longer would exist a union of States, therefore NO UNITED STATES. Slavery is irrelevant to the legality of secession.

If you’re inclined toward republicanism, at least the American version, Dr. Livingston is, perhaps, the first author/teacher to read. This man’s life is dedicated to saving and nurturing the truth of our history.

Excellent article. One only need to read The Hampton Roads Conference if they ever thought Lincoln’s ambition had anything to do with freeing the slaves. Second, an honest read of the Emancipation Proclamation should point one to the fact that his executive order never freed any slaves in Union controlled or friendly States and was toothless in the Confederacy

This simple polemic ignores the meaning behind the text of Article VII of the Constitution:

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.:

The Founders purposefully referred the Constitution to The People of the states to ensure that the new government would be a sovereign entity. Naturally, the states retained their sovereignty, although it was curtailed by the Constitution.

The Founders despised the weak Articles of Confederation, which was why they created this sovereign government. The true genius of James Madison was to conceive of the idea of “dual sovereignty”–that the people of the states vest sovereignty in the states, while at the same time the People of the United States vest sovereignty in the federal government.

A sovereign CANNOT be divided against its will. Therefore, the United States can’t be broken up without its permission. So, far from being an “absurd nationalist theory,” it was very much the intent and creation of the Founders themselves. If Prof. Livingston has a beef with someone, it’s Madison, not Lincoln.

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”

So we see here that the CONstitution DID NOT establish a complete national sovereignty, as that would imply a subordination of the States. The ultimate subordination would be the establishment of a complete national sovereignty wherein the individual State could not exit the union of States upon its individual retained sovereignty.

The States would not ratify the new CONstitution, until the tenth amendment was added, which places Hamilton’s assurance within…

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Surely Mr. Shelley one must understand that “respectively” means individually, therefore only the specific powers that were delegated to the United States, (THE COLLECTIVE OFTHE STATES), All other powers were retained by each INDIVIDUAL State. Herein is where you MUST cite the POWER granted to the United States, (THE STATES AS A COLLECTIVE) as opposed to each individually, that gives the collective the POWER to prevent a State from exiting the union on its individually retained POWER. (THE POWER NOT DELEGATED TO THE COLLECTIVE).

Further Mr. Shelley we must review Madison’s own words in the Federalist #s 39 and 62…

#39….”Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.”

We see here that Mr. Madison is stating that it is NOT a national character wherein the whole must agree to the abolishment of an individual States relation to the collective, but rather the opposite.

In the Federalist #62 Madison, when speaking of the Senate whereby each States Senators were appointed by each State’s legislature, Madison states…..

“It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”

Here we see that each State has retained its individual AUTHORITY, which again is all POWER NOT delegated to the collective.

Further Madison states…

“In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.”

What we ask is that residuary sovereignty?

That would be EVERY POWER NOT delegated to the United States, (The States collectively).

To ASSUME that a State cannot at the will of its people exit the union would be the ultimate consolidation into a complete national sovereignty, and a compete consolidation of the States into a single State.

And last the Founders’ did NOT all despise the Articles of Confederation, in fact there was a schism over this very issue, wherein the Anti Rats, (The “anti-federalists”) wished to retain the Articles. It was the Rats, the Nationalists, who wished their government to be one of power grandeur and splendor who advocated the change. As Patrick Henry stated….

” And those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice, and been the victims of their own folly: While they acquired those visionary blessings, they lost their freedom.”

If one understands Madison’s explanation of the 1787/1789 U.S. CONstitution, in the Federalist #39 and 62, then one can clearly see that the federal portion was the appointment by each individual State governments legislature of their own representatives, (SENATORS), without this specific appointment by each individual State, the individual States have NO voice, NO Participation in the central body, and NO means of protecting that residuary sovereignty from the collective, hence there no longer exists a federal system within, therefore you now have a wholly national system.

James Madison states in the Federalist #39 that….

“The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things”

In other words, there exists nothing more today than a wholly national system, wherein all power is consolidated, that is authority over every individual U.S. citizen, and a supremacy over all persons and things.

Mr. Shelly, one cannot assert that the States retain their sovereignty when they cannot assert that sovereignty to exit the collective, that is contradictory in itself.

–Mr Shelley, you ignore Mr. Hamiltons assurances in the Federalist #32 wherein he states.. “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”–

Actually, Hamilton totally supports my assertion, since we are not talking about a total destruction of the states, but rather merely a partial change in their sovereignty. You must read the entire sentence, and not stop before he qualifies with “and which were not, by that act, EXCLUSIVELY delegated to the United States.” The right to secede does not exist in the Constitution.

–So we see here that the CONstitution DID NOT establish a complete national sovereignty, as that would imply a subordination of the States. The ultimate subordination would be the establishment of a complete national sovereignty wherein the individual State could not exit the union of States upon its individual retained sovereignty.—

But the states are indeed subordinated to the federal government, as per Article VI. And nobody said anything about a “complete national sovereignty.” The dual sovereignty that Madison envisioned means the People vest their sovereignty in both the states AND the federal government.

–The States would not ratify the new CONstitution, until the tenth amendment was added, which places Hamilton’s assurance within… “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”—

This is simply inaccurate. The ratification conventions all took place before the 1st Congress met to discuss amendments. Rhode Island and North Carolina were the only states to reject the Constitution, but since it only took nine to ratify, the document went into effect. There is a myth that New York and Virginia ratified under specific conditions, and if those conditions weren’t met, they reserved the right to secede. This is false. They reserved no such right. A simple reading of those ratification debates will confirm that. In addition, the Tenth Amendment does not protect an alleged right to secede since that right was abdicated in the process of ratification itself. In other words, the states reserved no right to secede because no such right existed.

–Surely Mr. Shelley one must understand that “respectively” means individually, therefore only the specific powers that were delegated to the United States, (THE COLLECTIVE OFTHE STATES), All other powers were retained by each INDIVIDUAL State. Herein is where you MUST cite the POWER granted to the United States, (THE STATES AS A COLLECTIVE) as opposed to each individually, that gives the collective the POWER to prevent a State from exiting the union on its individually retained POWER. (THE POWER NOT DELEGATED TO THE COLLECTIVE).—

The United States government under the Constitution is not a collective. You are confusing our government with the Articles of Confederation, which was indeed a collective. The ratification process, wherein We the People convened and ratified the Constitution, meant that the new government was a sovereign entity, just as the states continued to be sovereign, although the states sovereignty was reduced and subordinated to the federal government. “Respectively” referred to the mechanics of ratification—that the conventions would be conducted state-by-state, because the states were being asked to give up a measure of their sovereignty, and convening state-by-state was the only practical way to conduct the process.

–Further Mr. Shelley we must review Madison’s own words in the Federalist #s 39 and 62… #39….”Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government.” We see here that Mr. Madison is stating that it is NOT a national character wherein the whole must agree to the abolishment of an individual States relation to the collective, but rather the opposite.—

A “national” government, in Madison’s vernacular, would mean abolition of the states. A “federal” or “confederate” government meant a combination of both. Madison says this again and again in the Federalist Papers and elsewhere. Again, the Constitution did not destroy state sovereignty; but it most certainly did create a federal sovereignty government.

–In the Federalist #62 Madison, when speaking of the Senate whereby each States Senators were appointed by each State’s legislature, Madison states….. “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” Here we see that each State has retained its individual AUTHORITY, which again is all POWER NOT delegated to the collective.–

No-one has said otherwise.

–Further Madison states… “In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.” What we ask is that residuary sovereignty? That would be EVERY POWER NOT delegated to the United States, (The States collectively).–

This actually favors my argument, since the “residuary sovereignty” means the sovereignty left over after the Constitution reduced the states’ sovereignty and established its own.

–To ASSUME that a State cannot at the will of its people exit the union would be the ultimate consolidation into a complete national sovereignty, and a compete consolidation of the States into a single State. And last the Founders’ did NOT all despise the Articles of Confederation, in fact there was a schism over this very issue, wherein the Anti Rats, (The “anti-federalists”) wished to retain the Articles. It was the Rats, the Nationalists, who wished their government to be one of power grandeur and splendor who advocated the change. As Patrick Henry stated…. ” And those nations who have gone in search of grandeur, power, and splendor, have also fallen a sacrifice, and been the victims of their own folly: While they acquired those visionary blessings, they lost their freedom.”–

No, not at all. You are seeing this as all or nothing, and it is not. Even Patrick Henry understood this division of sovereignty, as he stated in the Virginia Ratification Debates: “[W]ho authorised them to speak the language of, We, the People, instead of We, the States? States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States…. Have they said, we the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: It is otherwise most clearly a consolidated government. The question turns, Sir, on that poor little thing—the expression, We, the people, instead of the States of America.” In the end, Henry’s worry that this was a “great consolidated National Government” turned out to be inaccurate. But he surely understood the importance of “We the People” and not “We the States.”

–If one understands Madison’s explanation of the 1787/1789 U.S. CONstitution, in the Federalist #39 and 62, then one can clearly see that the federal portion was the appointment by each individual State governments legislature of their own representatives, (SENATORS), without this specific appointment by each individual State, the individual States have NO voice, NO Participation in the central body, and NO means of protecting that residuary sovereignty from the collective, hence there no longer exists a federal system within, therefore you now have a wholly national system.–

No. Examining the appointed of senators merely means the states retain sovereignty, which is explicit in the document.

–James Madison states in the Federalist #39 that…. “The idea of a national government involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things” In other words, there exists nothing more today than a wholly national system, wherein all power is consolidated, that is authority over every individual U.S. citizen, and a supremacy over all persons and things. Mr. Shelly, one cannot assert that the States retain their sovereignty when they cannot assert that sovereignty to exit the collective, that is contradictory in itself.–

Of course one can, but one must have the political imagination of James Madison to do that. Again, you mistake the United States under the Constitution with the United States under the Articles of Confederation.

Lastly, here is a test. Three questions, yes or no:

1) Can any entity except a sovereign government pass a law that has a direct effect on one of its citizens?

2) Can the United States pass a law that has a direct effect on one of its citizens?

3) Could the United States pass such laws in the period between 1789 and 1860?

The answers of course are 1) No; 2) Yes; and 3) Yes. And so this proves that the United States government under the Constitution is a sovereign entity. That does not mean the states weren’t or aren’t sovereign. It means that the United States is sovereign as well. And as such, it cannot be divided against its will.

Mr. Shelley, You are incorrect, and hold a misunderstanding of Hamilton’s words in #32. They in no way support your Assertion: Here is why…. Let us consider the last sentence of Hamilton’s assurance… But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”– Read here… all the RIGHTS OF SOVEREIGNTY which they before had” Mr. Shelley…..What rights did they before have? Let us review article II of the Articles of Confederation…. “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” So we see that EACH State retained its sovereignty and INDEPENDENCE, as well as jurisdiction which WERE NOT SPECIFICALLY DELEGATED TO THE COLLECTIVE/THE UNITED STATES. Here: Mr. Shelley is where YOU are required to cite the power that was DELEGATED BY THE STATES TO THE COLLECTIVE, UNITED (THE UNITED STATES) to prevent a State from exiting the collective/confederation of States/union of States/United States. Mr. Shelly: CAN YOU PLEASE CITE THE LAW? Mr. Shelley, you have stated here….”The right to secede does not exist in the Constitution.” Sir, the right to seceded need not exist in the CONstitution in order for secession to be LEGAL, NOTHING IS ILLEGAL UNLESS A LAW HAS BEEN ESTABLISHED TO MAKE SOMETHING ILLEGAL, However for the right of secession to be denied, there first MUST be a LAW making it unlawful or illegal. One could not possibly list every power or authority in the Constitution that would be retained by each State, therefore, it was necessary ONLY that a list of specific powers be enumerated that the collective/The United States could hold, all others to be retained by each State respectively/INDIVIDUALLY. I see NO POWER granted delegated by the States to the United States to prevent a State from seceding. Could you please cite that enumerated POWER? Mr. Shelley, What does Sovereign and Independent mean? According to Johnson’s Dictionary of the English language (1755) edition, which would be the definition used by both the Founders’ and Framers’ So VEREigN. »./. Supreme lord.

So’vEREiGNTY. Supremacy; highest place; Supreme Power. InDEPeNDENT. I. Not depending; not supported by any Other; not relying. on another; not controlled. So, Mr. Shelley, Sovereign means supreme lord, Supreme power, while independent means NOT Controlled. So each State retains its Supremacy which was NOT specifically delegated to the collective union/ The United States. Each State retained every aspect of Independence that was not expressly delegated by the States to the collective of States/the United States. To be denied the SUPREME POWER of exiting the union would be a complete subordination of a State, and a complete loss of sovereignty and Independence. Mr. Shelley, if you were placed in prison, could you claim that you are sovereign and Independent? ANSWER: NO. Even if you retained certain rights, such as the right of humane treatment, you could not, without the power to leave the prison walls, claim that you are a sovereign individual, or that you are independent. Mr. Shelley, Your reference to Article VI is one I receive often, and so few even understand it simplicity. The part to which you reference states as follows….. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” AGAIN, HERE IS THE POINT IN WHICH YOU MUST CITE THE LAW, OR CONSTITUTIONAL AMENDMENT THAT STATES THAT SECESSION IS UNLAWFUL AND ILLEGAL. IS THE 1787/1789 U.S. CONstitution, NOT STATED TO BE “THE SUPREME LAW OF THE LAND”? IF SO, THEN PLEASE CITE THAT LAW OR REFERENCE CONCERNING SECESSION, WHICH GRANTS SUPREMACY TO THE COLLECTIVE OF STATES/THE UNITED STATES. Again without a law or amendment concerning secession, that power/jurisdiction is retained by each State individually. Mr. Shelley, you have stated…. “The ratification conventions all took place before the 1st Congress met to discuss amendments. Rhode Island and North Carolina were the only states to reject the Constitution, but since it only took nine to ratify, the document went into effect. “ Mr. Shelly, Virginia, Madison’s own home State would not vote for ratification until he assured the people at the Virginia Convention that the Bill of Rights would be added after ratification, therefore my statement was indeed accurate , both North Carolina and Rhode Island refused as well, Without one of these three, the nine needed would not be met. The assurance of the Bill of rights was as stated was what granted the ratification. Mr. Shelley, You are really confused here with this statement…. “The United States government under the Constitution is not a collective. You are confusing our government with the Articles of Confederation, which was indeed a collective. The ratification process, wherein We the People convened and ratified the Constitution, meant that the new government was a sovereign entity, just as the states continued to be sovereign, although the states sovereignty was reduced and subordinated to the federal government. “Respectively” referred to the mechanics of ratification—that the conventions would be conducted state-by-state, because the states were being asked to give up a measure of their sovereignty, and convening state-by-state was the only practical way to conduct the process.” If the United States is NOT a collective of States, if it is NOT a union of States, if it is not a Confederacy of States, then it cannot be called the “United States”, it would be the United People of America. Mr. Shelley, here is the best explanation that I can offer in helping you to understand what seems to elude you here: It is from James K Polk’s Inaugural address……. “The Constitution itself, plainly written as it is, the safeguard of our federative compact, the offspring of concession and compromise, binding together in the bonds of peace and union this great and increasing family of free and independent States, will be the chart by which I shall be directed.” “The Government of the United States is one of delegated and limited powers, and it is by a strict adherence to the clearly granted powers and by abstaining from the exercise of doubtful or unauthorized implied powers that we have the only sure guaranty against the recurrence of those unfortunate collisions between the Federal and State authorities which have occasionally so much disturbed the harmony of our system and even threatened the perpetuity of our glorious Union.” “To the States, respectively, or to the people” have been reserved “the powers not delegated to the United States by the Constitution nor prohibited by it to the States.” Each State is a complete sovereignty within the sphere of its reserved powers. The Government of the Union, acting within the sphere of its delegated authority, is also a complete sovereignty. While the General Government should abstain from the exercise of authority not clearly delegated to it, the States should be equally careful that in the maintenance of their rights they do not overstep the limits of powers reserved to them.” To the Collective of States/The United States is delegated LIMITED POWERS, and is to abstain from the exercise of doubtful or unauthorized implied powers, only to operate under CLEARLY GRANTED POWERS. Mr. Shelley, do inferiors delegate to superiors, or do superiors delegate to inferiors? The States did the delegating. The “federal government” is a product of the States, it was NEVER party to the 1787/1789 U.S. CONstitution, but rather a product of compromise, and concession by the States that were party to it. Mr. Shelley, I stated that Madison states in the Federalist #62…. ““In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.” What we ask is that residuary sovereignty? That would be EVERY POWER NOT delegated to the United States, (The States collectively).– Mr. Shelley, You replied….. “This actually favors my argument, since the “residuary sovereignty” means the sovereignty left over after the Constitution reduced the states’ sovereignty and established its own.” Mr. Shelley, this actually defeats your argument and in NO way favors it…. That residuary sovereignty is EVERY SOVEREIGN POWER THAT WAS NOT SPECIFICALLY DELEGATED TO THE COLLECTIVE OF STATES/THE UNITED STATES. THE RESIDUARY SOVEREIGNTY WOULD BE AS DEFINED EARLIER…. “So’vEREiGNTY. Supremacy; highest place; Supreme Power. This would mean supremacy in all things/all power not specifically granted by the States to the collective/The United States. Now where is the specifically enumerated power that was delegated to the collective/The United States to prevent a State from seceding from the union? PLEASE CITE THE LAW. Mr. Shelley, Mr. Henry’s worries did indeed turn out to be completely accurate, in that we do have a complete consolidated government. Mr. Henry stated that… “This government cannot last,” he thundered, “It will not last a century; we can only get rid of its oppression by a most violent and bloody struggle.” Ninety years later Lincoln fulfilled Patrick Henry’s prophecy. Mr. Shelley, what say do the State governments have in legislation by the central government? What dept do the State governments have within the central government? If they now hold neither of these, then it is indeed a consolidated government because as Madison stated in the federalist #62… –In the Federalist #62 Madison, when speaking of the Senate whereby each States Senators were appointed by each State’s legislature, Madison states….. “It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” Here we see that each State has retained its individual AUTHORITY, which again is all POWER NOT delegated to the collective.– No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. The State governments no longer have that select appointment, they no longer have a dept within, they no longer have a say in law, or resolution passed, clearly it is a consolidated national government. Mr. Shelly, if the CONstitution actually be a contract between, “We the people” then it amounts to a contract between a man and a man, instead of a compact between states. A contract between men does NOT bind their posterity but only those living at the time the contract was established. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now.” Those men who met in Philadelphia were there as agents of the States, not directly of the people. They were only authorized to amend The Articles of Confederation, not to establish a new constitution, and by wording “We The People” were not acting upon the authority of the States that they were agents thereof. The constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between anybody but “the people” then existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Mr. Shelley, Your questions and answers here are incorrect….. 1) Can any entity except a sovereign government pass a law that has a direct effect on one of its citizens? 2) Can the United States pass a law that has a direct effect on one of its citizens? 3) Could the United States pass such laws in the period between 1789 and 1860? The answers of course are 1) No; 2) Yes; and 3) Yes. And so this proves that the United States government under the Constitution is a sovereign entity. That does not mean the states weren’t or aren’t sovereign. It means that the United States is sovereign as well. And as such, it cannot be divided against its will. There is a difference between an American citizen, and a U.S. citizen, one is a fiction, the other a flesh and blood individual. The answer to #1 is No The answer to #2 is NO The answer to #3 is No The United States cannot pass a law that affects James Everett alone, it must affect all “citizens”, yet even so, The United States could not between 1789 and 1860 establish a law that was beyond the specifically enumerated powers delegated to the collective/the United States by the States under CONstitution FOR the United States. The argument is NOT that the U.S. government as a collective is not a sovereign, the argument is about SOVEREIGNS (Plural) Each State is a sovereign, yet the collective/the United States is also a sovereign, each to be confined to its sphere of sovereign powers, the collective within its sphere are specific, and enumerated, the States within their individual sphere of powers are LIMITED ONLY BY THE PEOPLE OF THAT SOVEREIGN STATE DERIVING ITS JUST POWERS FROM THE CONSENT OF THE PEOPLE THEREOF, AND THOSE THAT THEY PLACED WITH THE CENTRAL BODY FOR AS LONG AS THEY CHUSE TO REMAIN CONNECTED AS A MEMBER STATE. AGAIN, Mr, Shelley, YOU MUST CITE THE LAW, OR AMENDMENT THAT STATES THAT A STATE CANNOT SECEDED FROM THE UNION, OTHERWISE, ABSENT A LAW MAKING SUCH ACT UNLAWFUL AND ILLEGAL, THERE CAN BE NO VIOLATION OF A NON EXISTENT LAW. I CAN ON THE OTHER HAND CITE THE CONSTITUTIONAL AMENDMENT THAT DENIES SUCH POWER TO PREVENT SECESSION BY THE UNITED STATES, AND THAT SIR, IS AMENDMENT # TEN.

While I appreciate your using a contemporary dictionary to define sovereignty, I am using the term as political scientists (like Madison) understood it then and now.

Sovereignty means simply “the right to rule.” In the pre-Revolutionary period, the sovereign was the king; the population were his subjects, since they were subject to his rule. One of the many reasons the American Revolution is revolutionary is that it rejected that model, and devised a new one: popular sovereignty. In May of 1776, the Second Continental Congress advised the colonies to get rid of their charters (which derived their power from the King and Parliament) and devise new constitutions based on popular sovereignty. In this model, the People are the sovereign, and they vest that sovereignty in a government, which then passes laws that they are subject to. So The People are both sovereign AND subjects in this model, which we still hold true.

One of the characteristics of a sovereign entity is its indissolubility. It simply cannot be taken apart against its will. Witness the current example of California, which some are campaigning to break into six different states. To make this a reality, the People of the entire state must agree to separate; if not, then no separation.

Those men in Philadelphia were indeed agents of their states. But most of them also wished to go around their states, and appeal DIRECTLY to the People of each state. This was deliberate. They had no intention of making yet another creature of the states, as the Articles of Confederation had done. That is why they crafted Article VII the way they did. If they had wanted a “collective,” they would have created one.

My entire point is based on the notion that the United States is a sovereign entity. And we know it is, since first, Article VII stipulated that conventions of the PEOPLE of the states (and not merely the states) would ratify; and second, because only a sovereign power can pass laws that directly affect its citizens. Because the United States did indeed pass many such laws that directly affect its citizens, it is, by definition, a sovereign. And as such, it is indivisible. Your remark “If the United States is NOT a collective of States, if it is NOT a union of States, if it is not a Confederacy of States, then it cannot be called the ‘United States’, it would be the United People of America,” assumes that sovereignty is “all or nothing.” That is not so. This is Madison’s great genius, this dual sovereignty idea. It is at the heart of federalism. What you describe is a league, or a confederacy. That is not what the United States is.

While the Federalist Papers are invaluable as guides into the Founders’ thought process on republican government, one must keep in mind that they were written as political documents, intended to achieve a political result. And one must look very hard at Hamilton especially, since it was his recommendation at the Constitutional Convention that states be eliminated altogether! Madison has many, many quotes that demonstrate that the Founders’ overall intention was to create a perpetual Union. One can start with his letter to Daniel Webster in 1833 http://press-pubs.uchicago.edu/founders/documents/v1ch3s14.html:

“I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes “nullification” and must hasten the abandonment of “Secession.” But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

“It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others.

“The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution; it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.”

Again, the mechanism of ratification by We the People negated any possible right to secede. Therefore, there is no right to secede under the Tenth Amendment.

Besides the Constitution itself, there are key Supreme Court decisions that buttress the idea of a sovereignty Union. Four in particular: Fletcher v. Peck, (1810); McCullough v. Maryland, (1819); Cohens v. Virginia, (1821); and Gibbons v. Ogden, (1824). All of these affirm the philosophy that the nature of the states’ sovereignty was fundamentally altered by ratification, that it was diminished, and that the United States was (is) a sovereign.

And no, I do not need to cite a particular law or statute that makes secession unconstitutional because there is no need: the right of secession does not exist under the Constitution, and so any such law would be redundant.

Mr. Shelley, I to appreciate your effort, though fraught with error. We begin with your statement of error here…. “While I appreciate your using a contemporary dictionary to define sovereignty, I am using the term as political scientists (like Madison) understood it then and now. Sovereignty means simply “the right to rule.” Mr. Shelley, as I stated when I posted the definition below, it is the definition from Johnson’s Dictionary of the English language from the year 1755, which is the definition that both the founders’ and the framers’ would have used. This is why I always refer to this specific edition. It is NOT a contemporary dictionary. Sovereign.>./. Supreme lord Sovereignty. Supremacy: highest place: Supreme Power. So here we see your first error. I have given you the proper definition from the period, while what you offered was given without citation. Next, I would like to jump to the end of your most recent post wherein you have stated….. “And no, I do not need to cite a particular law or statute that makes secession unconstitutional because there is no need: the right of secession does not exist under the Constitution, and so any such law would be redundant.” I find this interesting because in one of your earlier post’s you cited the supremacy clause in Article VI : Yet now you wish to ignore the Supremacy clause by stating that you need NOT cite the law preventing secession. Article VI clearly states…. “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” So we can see that Your U.S. CONstitution is stated to be the supreme law of the land, so here we will see what the supreme law of the land states in amendment number ten….. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” So we see here that the POWERS NOT DELEGATED to the United States, (the collective) are RESERVED to each State INDIVIDUALLY. So if NO power to prevent secession was granted to the United States, (The States collectively), then THE SUPREME LAW OF THE LAND STATES THAT THAT SPECIFIC POWER IS RETAINED BY EACH STATE INDIVIDUALLY. SO YES INDEED, YOU DO NEED TO CITE THE LAW, AMENDMENT, OR SUCH POWER GRANTED WITHIN ONE OF THE ARTICLES WITHIN YOUR 1787/1789 U.S. CONstitution, otherwise you are denying that your CONstitution is the supreme law of the land. One cannot assume powers NOT SPECIFICALLY DELEGATED: This is exactly what you are attempting. Next, you state…. “One of the characteristics of a sovereign entity is its indissolubility. It simply cannot be taken apart against its will. Witness the current example of California, which some are campaigning to break into six different states. To make this a reality, the People of the entire state must agree to separate; if not, then no separation.” First, California is no example to cite at all, as California is not a Confederation, or union, of Sovereign States, or even Sovereign Counties/Parishes. Next, the Sovereign institution of the central body/General government is a product of the States, IT IS SOVEREIGN ONLY, O N L Y within the sphere of its DELEGATED POWERS, NOT one jot, NOT one tittle beyond, that sphere. AGAIN, I REFER YOU TO THE TENTH AMENDMENT. ….. ““The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” “EVERY SINGLE POWER OUTSIDE OF THAT DELEGATED TO THE UNITED STATES, (The Collective) is reserved by the INDIVIDUAL. The States sphere of powers are UNLIMITED except in two areas, one is the POWERS that they delegated to the collective, the other limit is by the PEOPLE OF THAT INDIVIDUAL STATE, NOT….N O T, the people of the whole of the union/confederacy. Next, Mr. Shelley, you have stated…. “Those men in Philadelphia were indeed agents of their states. But most of them also wished to go around their states, and appeal DIRECTLY to the People of each state. This was deliberate. They had no intention of making yet another creature of the states, as the Articles of Confederation had done. That is why they crafted Article VII the way they did. If they had wanted a “collective,” they would have created one.” You have just stated that those men were agents of the States. What they may, have wished to do is irrelevant, they were bound by their respective State to do the will of the State which they represented. Article VII states…. “The ratification of the conventions of nine States shall be sufficient for the establishment of this constitution between the States so ratifying the same.” Note: Mr. Shelley that each State held a convention, and that the CONstitution was BETWEEN THE STATES. Delegates from within each individual State were appointed and sent to each individual States convention to represent the people of their State district. Example…. December 25, 1787 Only eight of the thirty-three delegates elected to the Georgia Convention assembled in Augusta on Tuesday, 25 December, the day appointed for convening. A quorum was not obtained until Friday the 28th, when the Convention examined the delegates’ credentials and then elected John Wereat, President; Isaac Briggs, secretary; and Peter Farr, doorkeeper. The CONstitution was NOT ratified by popular vote of the people of the whole of the States, but rather by elected delegates within each individual State. It was an act of the States individually. They did indeed retain a collective of States, as in a Confederation of States / a union of States, again see the federalist #39 and 62. Mr. Shelley, you have stated….. “My entire point is based on the notion that the United States is a sovereign entity. And we know it is, since first, Article VII stipulated that conventions of the PEOPLE of the states (and not merely the states) would ratify; and second, because only a sovereign power can pass laws that directly affect its citizens. “ Please Sir, DO take the time to read, and understand Article VII, It states NOTHING, ABSOLUTELY NOTHING about “the PEOPLE”. It is a very short read, only 24 words. Mr. Shelley, you state… “This is Madison’s great genius, this dual sovereignty idea. It is at the heart of federalism. What you describe is a league, or a confederacy. That is not what the United States is.” Sir, Dual Sovereignty has nothing to do with federalism. Please allow me to submit for your needed understanding the definition of federalism from Johnson’s Dictionary of the English language (1755 edition), that would be the definition that both the founders’ and framers’ would have considered. Confe’der Acy. n.f. [confederation. Ft. faedus, Latin.] A league ; a contract by which several persons or bodies of men engage to Support each other ; union ; engagement ; federal compact.

Fe’deral. adj. [from fadut, Latin,] Relating to a league or contract.

Fe’de»ate. adj. \faderatus, l.atin.] Leagued ; joined in confederacy In the case of the 1787/1789 U.S. CONstitution and Madison’s meaning of federal, which fits with the above definition we refer to the Federalist #39 wherein James Madison explains what the “federal” system is within the 1787/1789 U.S. CONstitution….. “The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former (the federal system) the powers operate on the political bodies composing the Confederacy, in their political capacities; in the latter, (the national system) on the individual citizens composing the nation, in their individual capacities.” So we see here, Mr. Shelley, that “DUAL SOVEREIGNTY” is NOT THE HEART OF FEDERALISM, but rather the HEART of Federalism is IN FACT the States, without the State governments acting in the capacity of a Confederacy, there is NO federal system. So as you can see here Mr. Shelley, I am correct in my assertion that… ““If the United States is NOT a collective of States, if it is NOT a union of States, if it is not a Confederacy of States, then it cannot be called the ‘United States’, it would be the United People of America” is indeed CORRECT, where you are INCORRECT when you states that….” That is not what the United States is.” Let us here review Patrick Henry’s words…. “States are the characteristics, and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated National Government of the people of all the States.” “The distinction between a National Government and a Confederacy is not sufficiently discerned. Had the delegates who were sent to Philadelphia a power to propose a Consolidated Government instead of a Confederacy? Were they not deputed by States, and not by the people? The assent of the people in their collective capacity is not necessary to the formation of a Federal Government. The people have no right to enter into leagues, alliances, or confederations: They are not the proper agents for this purpose: States and sovereign powers are the only proper agents for this kind of Government:”

So as we can see Mr. Shelley, a federal system in regard to the 1787/1789 U.S. CONstitution is the States operating in the capacity of a Confederation, without such, there is NO federal system. Mr. Shelley, your assertion of sovereignty is correct; however you are confused concerning the spheres in which these sovereigns operate. You seem to hold the mistaken conclusion that the States gave up their individual sovereignty, yet their creation, the United States, (The States acting in union) became the dominant sovereign in all things. Each State did offer certain and specific sovereign powers to the unified body, for as long as each individual remained party to the union, yet even so these powers that they delegated to the collective in union were VERY limited, and the collective = The United States was to operate ONLY within its sphere of delegated authority, never to breech that sphere. The States on the other hand held near indefinite sovereign capacity, only delegating certain enumerated power to the collective in union, the individual States Sphere of Sovereign powers was almost limitless, limited ONLY by the people thereof, and that which the voluntarily offered to the collective for as long as they remained a party to that collective. In regard to the SCOTUS cases that you submitted, I offer the two below…. Chisholm V Georgia…(1793) The U.S. Supreme Court has to decide whether they have jurisdiction over the state of Georgia. This question will depend upon the answer of whether of not “the people of the United States form a nation”. HOLDING: The Court agreed that Georgia was subject to the jurisdiction of the U.S. Supreme Court As a result of this SCOTUS opinion Georgia responded that….. “To submit to the jurisdiction of the federal court would be to destroy the retained sovereignty of the State.” The Georgia legislature in acting in its SOVEREIGN capacity passed a Bill ordering that any federal agent attempting to execute the court’s order should “..Suffer death, without benefit of clergy, by being hanged.” Eleven of the thirteen States immediately ratified the Eleventh amendment limiting the SCOTUS judicial power in order to protect the RETAINED SOVEREIGNTY of each State. So we see that from the beginning there was strife concerning Sovereignty of the States, and the U.S. attempts to deny that sovereignty.

I submit….. U.S. Supreme Court Pollard’s Lessee v. Hagan, 44 U.S. 3 How. 212 212 (1845) When Alabama was admitted into the union, on an equal footing with the original States, she succeeded to all the rights of sovereignty, jurisdiction, and eminent domain which Georgia possessed. The United States never held any municipal sovereignty, jurisdiction, or right of soil in and to the territory of which Alabama or any of the new States were formed. Each of the cases that you have posted below are not relevant to secession. Fletcher v Peck, has nothing to do with secession, but rather ex-post facto law. McCullough v. Maryland has nothing to do with secession, (No law was made even post 1865 concerning secession) the U.S. is limited within its sphere of action, its actions are limited to the CONstitution, and the laws when made in pursuance thereof. PLEASE CITE THE LAW IN PURSUANCE THEREOF, CONCERNING SECESSION. Cohens v. Virginia, Has to do with criminal cases and SCOTUS jurisdiction in such cases. Mr. Shelly, what you seem to overlook, is that once a State has seceded, it is no longer party to the U.S. CONstitution, therefore the U.S. NO LONGER HAS JURISDICTION; the U.S. at that point has no more Jurisdiction over such State than it would have over France, or England. Now, Mr. Shelley, I need to finish this specific post as I do not wish to go toooo long, but I wish to address these last two statements of yours…. First you have stated….. “One of the characteristics of a sovereign entity is its indissolubility. It simply cannot be taken apart against its will.” The Sphere of Sovereign power delegated to the U.S. remained intact when each of the Southern States seceded, however it simply applied ONLY to those States that chose to remain united. That sovereign power was NOT dissolved when each of the Southern Confederate States seceded, it still remained a sovereign entity within its sphere of delegated authority effecting those States that remained united by the 1787/1789 U.S. CONstitution. You have fallen for the Lincoln myth of preserving the union. The union remains as long as two States remain united, albeit a smaller union. So as you can see, you assertion that the sovereign entity was somehow being dissolved falls flat. The union remained perpetual regardless of States seceding, and at the point if that ever were to occur that the last two States that remained united were to separate, then the act of dissolving that sovereign would be a voluntary act, as that sovereign entity is simply reliant on the will of the States that established it for its very existence. One MUST understand that that which is created belongs to its creator, and in this case creators. Romans 9:20…” But who are you, a human being, to talk back to God? “Shall what is formed say to the one who formed it, ‘Why did you make me like this?” God created each individual, and grated him free will, thus SOVEREIGNTY, yet we each exist at the will of our Creator. The States created by delegation of certain powers, the United States/the collective, and if one by one, they choose to withdraw themselves from that which they were party in creating, when the last two separate via secession, then those which created that sovereign entity, have dissolved that which they created, and exists through them. That sovereign entity exists until the last two agree to its dissolution, thus it will have ended by the will of all of its creators, and that entity would NOT have the right, NOR WOULD IT EVEN EXIST to have the right to ask why it was dissolved. As to Madison’s letter to which you refer…..I have read several and each address nullification, which is an entirely different animal from secession, and in each basically states that secession seems to be a question which will resolve itself. In closing, the 1787/1789 U.S. CONstitution was NOT ratified by “We the people” as you have stated, it was by each State and voted on by elected delegates, NOT the people of the whole. And again, if it had been by the people, then it would amount to a contract between the people then living, and could not bind those not yet born, on the other hand if it be by the States, then it would remain binding in its delegated sphere as long as the States exist, and by will continue to grant it its sovereign authority to operate within its delegated sphere.

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The conservative is concerned, first of all, with the regeneration of the spirit and character—with the perennial problem of the inner order of the soul, the restoration of the ethical understanding, and the religious sanction upon which any life worth living is founded. This is conservatism at its highest. - Russell Kirk